By Usha S Sri-Skanda Rajah –

Come March 2017 UN Must Act On Sri Lanka – Part 3

In the wake of a hybrid judicial mechanism being rejected outright by Sri Lanka, this article digs in, regardless of its unconscionable behavior, to examining what Sri Lanka must do NOW, the obligations the country promised to deliver and its blatant duplicity, the Council’s missed opportunity in Geneva and what should have been the outcome of the 34^th session as a result of Sri Lanka’s wilful non-compliance and to exploring the avenues for justice available for Tamils..      

What Sri Lanka Must Do NOW

On the 23^rd of March 2017 Sri Lanka co-sponsored Resolution hrc34/L1 (hrc34/L1) on Accountability, Reconciliation and Human Rights in Sri Lanka, incorporating hrc30/1 (hrc30/1) it previously co-sponsored on 1^st October 2015 but failed to comply, giving new impetus to hrc30/1 in the form of hrc34/L1 – which was adopted by the UN Human Rights Council (Council) again without a vote. It is now incumbent upon Sri Lanka, as per its undertaking, to BEGIN the task of delivering the commitments it agreed under both resolutions – immediately. That would mean getting down to the important business of enacting legislation, appointing a special counsel, opening a special counsel’s office, establishing a hybrid court and filing war crimes charges, beginning – NOW.

The Obligations Sri Lanka Promised to Deliver and HC’s Call for Hybrid Court Same

The place to look, to have a better insight into what Sri Lanka’s obligations entail, is to read both, Operative Paragraphs 6 and 7 found in hrc30/1 and Operative Paragraph 4 found in hrc34/L1 in CONJUNTION with the High Commissioner for Human Rights, Prince Zeid bin Ra’ad al-Hussein’s ‘Conclusions and Recommendations’ under Paragraph 67 (a-j) captioned ‘Legislation and Justice’ in his February 2017 Report – the one he submitted to the Council on Sri Lanka – the obligations  in question cover the core provisions relating to both, for one, the creation of legislation to, “criminalize war crimes, crimes against humanity, genocide and enforced disappearances,” and the other, the investigation, prosecution, trial and punishment of those responsible for such ‘Mass Atrocity Crimes’. 

Not only has the Council under hrc34/L1 – Operative Paragraph 4 requested the High Commissioner to assess the progress of Sri Lanka’s implementation of his recommendations, it must be noted, the recommendations itself got the full endorsement of Member States – those that gave Sri Lanka a two year extension of the timeline for fulfillment of commitments under the resolutions, given with the expectation that the recommendations would be acted upon – with Member State after Member State, in their statements, during discussions at the Council, urging Sri Lanka to heed the High Commissioner’s recommendations.

This being the case, quite apart from the fact that the High Commissioner’s comprehensive 2017 report, based on proper assessment of all factors, gives form and meaning to hrc30/L1.

It’s worth mentioning at this point, notwithstanding hrc34/L1 – Operative paragraph 4 and the call by Member States for Sri Lanka to heed the High Commissioner’s recommendations, Deputy Foreign Affairs Minister of Sri Lanka, Harsha de Silva, backing away from a hybrid mechanism and finding somehow some ambiguity in the words in hrc30/1, when none exists – is now insisting, undoubtedly in error, that Sri Lanka did not sign up to a hybrid court.  Reading the requisite sections, there is no denying the High Commissioner’s recommendations are the right interpretation of Operative Paragraph 6 (and 7). 

Looking at hrc30/1 – Operative Paragraph 6, it becomes clear, the drafters undeniably were providing for a hybrid court: The Council, “notes with appreciation the proposal of the Government of Sri Lanka to establish a judicial mechanism with a special counsel… affirms that a credible justice process should include independent judicial and prosecutorial institutions.. and also affirms in this regard the IMPORTANCE of PARTICIPATION in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators.”

And then reading that Operative Paragraph 6 in CONJUNCTION with the High Commissioner’s core recommendations, paragraph 67 (a-j) given in full here below, it becomes even more abundantly clear that the Council and the High Commissioner were on the same page with the High Commissioner’s Recommendations calling for Sri Lanka to: 

1. Implement the recommendations of the Special Rapporteur on the independence of judges and lawyers following the country visit in April-May 2016;
2. Review the Victim and Witness Protection Act with a view to incorporating strong safeguards for the independence and effectiveness of the victim and witness protection programme, in accordance with international standards;
3. Accede to the additional protocols to the Geneva Conventions, and to the Rome Statute of the International Criminal Court;
4. Enact legislation to criminalize war crimes, crimes against humanity, genocide and enforced disappearances without statutes of limitation, and enact modes of criminal liability, in particular command or superior responsibility;
5. Consider, as part of the constitutional reform process, the inclusion of a transitional clause to facilitate the establishment of transitional justice mechanisms and offer guarantees of redress to all those whose rights have been violated;
6. Adopt legislation establishing a hybrid court, which should include international judges, defence lawyers, prosecutors and investigators, to investigate allegations of violations and abuses of international human rights law and violations of international humanitarian law, and provide it with the resources necessary to enable it to try those responsible promptly and effectively;
7. Strengthen the forensic capacity of the police and judiciary and ensure that it is adequately resourced, including for DNA testing, forensic anthropology and archaeology;
8. Replace the Prevention of Terrorism Act by legislation that adheres to the best international practices;
9. Review all cases of detainees held under the Prevention of Terrorism Act with the aim of either releasing them or bringing them immediately to trial; establish a moratorium for the use of the Act for new arrests until it is replaced by legislation that adheres to international best practices; and review the cases of those convicted under the Act and are serving long sentences, particularly where convictions were based solely on confessions;
10. Promptly investigate and prosecute all allegations of torture and other gross human rights violations, and give the highest priority to long-standing emblematic cases so as to regain public confidence in the justice system; and implement fully the recommendations of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment and of the Committee against Torture.

It must be borne in mind, a, c and e of paragraph 67 above, are additional recommendations, among other, the High Commissioner made in his February 2017 report under the caption, Legislation and justice.

High Commissioner Recommends Sri Lanka Accede to Rome Statute, TGTE’s Call

It is noteworthy the High Commissioner has recommended that Sri Lanka sign up to both the Additional Protocols to the Geneva Conventions – relating to victims of armed conflicts, and the Rome Statute of the International Criminal Court (ICC) – where war crimes, crimes against humanity and genocide are prosecuted (67 c). Sri Lanka has neither acceded nor ratified either of these UN enactments. Could this be a subtle hint coming from the High Commissioner that an ICC referral is imminent if Sri Lanka backtracks on delivering on a hybrid mechanism?

In fact the TGTE (Transnational Government of Tamil Eelam) secured more than 1.6 million signatures, long advocating for Sri Lanka to be referred to the ICC, by either making a call to the  UN General Assembly with recommendation to establish a special tribunal under Article 22 of the UN Charter or under Article 13 (b) of the Rome Statute, through the UN Security Council, regardless of Sri Lanka’s refusal to ratify. Many Tamil politicians – some from the TNA, provincial councilors, lawyers, academics, professionals, activists, organizations and civil society members, seeking justice for victims of genocide are united in their call for an ICC referral as was seen at these sessions and by the joint appeal made by civil society organisations. It is to be noted, the calls for Sri Lanka to be referred is growing – apart from the High Commissioner, Estonia was one of those Member States that specifically asked Sri Lanka to ratify the Rome Statute.

The International Educational Development raised the issue of ICC referral at the general debate on ‘technical assistance and capacity building’ that the Council held, expressing disappointment at the Council’s failure to “explicitly require a hybrid court” and for “not even having a debate in a transparent manner”, urging  it to, “comply with the 1.6 million signatures the Tamil victims had collected in a call for the referral of the situation in Sri Lanka to the United Nations General Assembly with recommendations to establish a Special Tribunal or to refer the situation to the United Nations Security Council for referral to the International Criminal Court.” 

The High Commissioner’s additional recommendations got Sri Lanka so worried that prompted Harsha de Silva to clarify, “no new commitments arose from hrc34/L1  and that “there is a big difference,” between the resolution and the High Commissioners report.

Council’s Missed Opportunity

It must be said, examining High Commissioner’s damning reports of February 2017 and September 2015  and Sri Lanka’s brazen non-compliance of hrc30/1, one would have thought the Council would act decisively on Sri Lanka than give it a two year extension. Worse still, Sri Lanka’s outright refusal, to neither, “affirm foreign participation in its judicial mechanism,” nor “allow for the trial and punishment of those responsible,” including showing little or no propensity for a comprehensive plan for the reform of domestic law, made explicit, outside of the Council, by its leaders – but within hearing distance, should definitely have induced the Council to put Sri Lanka on notice, but it was not to be.

It was a crying shame the outcome at the end of the session was the adoption of another resolution that came with a two year extension in timeline for its implementation, with no strict, time bound bench marks, and no requisite element in place for any eventual non-compliance – an outcome that failed victims and failed them badly.

Flouting the Vetting Procedure

Sri Lanka has yet again managed to buck the United Nations System, and has returned from Geneva feeling smug and victorious – the Sirisena regime pretty chaffed at having told barefaced lies to the Council, while telling entirely a different story to its people back home, openly placating those allegedly implicated in ‘Mass Atrocity Crimes’; President Maithripala Sirisena , showing utter contempt by appointing, “only days after” the 34^th session, “an alleged war criminal”, Major General Shavendra Silva, as Adjutant General of the Sri Lankan Army – Shavendra Silva, who, “commanded the notorious 58 Division during the final phase of Sri Lanka’s civil war.” President Sirisena  was “flouting the vetting procedures pertaining to the security sector”; one which Sri Lanka undertook to abide by, reiterated in both the resolutions Sri Lanka signed up to, and additionally by the High Commissioner in his reports, a procedure used to vet members of the armed forces, for example, before being selected to serve in ‘peace keeping’ missions; the appointment condemned by International Truth and Justice Project as, “a slap in the face to tens of thousands of victims still waiting for justice eight years after the war ended.” Shavendra Silva, according to ITJP’s Executive Director, Yasmin Sooka, “a man the former High Commissioner for Human Rights, Navi Pillai, said had, at the very, least a case to answer regarding international crimes.” 

Despite its unashamedly two faced persona, Sri Lanka has emerged totally unscathed with a gift of a two year extension in its pocket, achieved with effortless ease, with no consequences whatsoever for non-compliance; the only redeeming feature for Tamil victims being the Council’s and the OHCHR’s continued engagement with Sri Lanka that the new resolution continues to provide for.

Council’s Failure to Set Strict Benchmarks a Serious Omission

In adopting hrc34/L1, the Member States’ woeful lack of commonsense and sound judgment, and its failure to hold Sri Lanka to account, amounting to a serious and glaring omission in its text, has now become apparent, which experts in the  Sri Lanka ‘Monitoring and Accountability Panel’ – MAP, have “noted with concern”, as falling short of the desired, “strict benchmarks and deadlines (that needed to be set by the Council) for implementing transitional justice mechanisms established in hrc30/1.”

MAP which is a TGTE appointed, independently functioning panel of legal experts, specialised in war crimes tribunals, in its response to the final draft, had identified this omission as a failing in the text of hrc34/L1 considering, “based on the lack of significant progress seen thus far, simply providing time frames for the GSL and the Office of the High Commissioner for Human Rights to report on the implementation of Resolution 30/1 at the 37^th and 40^thHRC Sessions is not enough to ensure that the GSL abides by its commitments and obligations.”

Then the fault must lie with the Member States surely, handing Sri Lanka a further two year extension on a platter with no conditions attached – States who didn’t seem to have the prudence or good sense to see through the sham, or, who simply refused to admit to Sri Lanka’s shenanigans and act on it – overlooking the need for strict bench marks and an ICC referral – in the event of any future conceivable non-compliance; the ICC referral – a critical requirement that should have been incorporated in the new resolution, in the face of Sri Lanka’s flagrant disregard for the hrc30/1 it had co-sponsored earlier, and of its open declaration to flout hrc34/L1, the – that which, its leaders, without exception, openly vow they would contravene and wouldn’t comply with.

Sri Lanka’s blatant Duplicity and Unconscionable Behavior

It sure is illogical, otherwise could only be attributed to willful indifference or to some sinister self interest on the part of Member States, to offer Sri Lanka a two year extension simply do what it says it won’t do; In other words, while President Sirisena and his regime’s leading figures, back in Sri Lanka, were claiming – like Prime Minister Ranil Wickremesinghe saying no to “foreign judges” and categorically stating, “Sri Lanka would not join the ICC,” – with Chandrika Kumaratunga declaring, “no war hero who killed terrorists will be punished,” – and the president asserting, that they as a “sovereign nation” are not beholden to anyone and “are not ready to make any war hero a suspect,” – dismissing any foreign involvement in Sri Lanka’s judicial process, two of his Ministers, holding the fort in Geneva – had made and were making hollow promises; with, Harsha de Silva, going as far to, “reiterate.. resolve and reaffirm (Sri Lanka’s) commitment to the reconciliation process and commitments articulated in hrc30/1.” This despite the President mindfully aware of the pronouncements his Ministers were making at the Council, even boldly telling his armed forces that, “the most powerful world leaders have assured him that they would stand by Sri Lanka’s independence and democracy as well as on issues pertaining to the members of the armed forces.”

Sri Lanka’s shameless duplicity has made a mockery of the Council just like it did the Norway brokered peace process between Sri Lanka and the LTTE (Liberation Tigers of Tamil Eelam), right from its inception – the blame for the failure of which Sri Lanka deviously and unjustly try to lay on the LTTE, when Sri Lanka was the worst offender. It’s unfortunate that Member States have chosen to ignore Sri Lanka’s charade. 

The seemingly iron clad guarantees, Mangala Samaraweera gave earlier at the start of the sessions and Harsha de Silva gave to the Council when making his submissions during the ‘Interactive Dialogue’ – have been proven to be outrageous lies – amounting to a shameless display of duplicity that Sri Lankan governments are famous for. A true Sri Lankan would have cringed to hear the Minister inform the Council of Sri Lanka’s request, “for a two-year extension of the timeline for fulfillment of commitments made in hrc30/1 , boldly stating with unabashed conviction, his own and that of his leaders’ “determination to stay the course, ” when adding insult to injury the two ministers who vowed to fulfill Sri Lanka’s commitments under hrc30/1 in Geneva have now recanted on the issue of a hybrid judicial mechanism.

What’s more important are Mangala Samaraweera’s words returning from Geneva, explaining Sri Lanka’s road map and alluding to foreign judges and asking “why the obsession” with it. This in addition to dropping another bombshell, as he tells Sri Lanka’s Sunday Observer news paper, they (the government) were, “not going to touch the judicial mechanism straightaway.” In truth, in his telling interview given to Sri Lanka’s Sunday Observer, Mangala Samaraweera should have essentially first talked about opening a special counsel’s office, more specifically about appointing a “special counsel”, to get on with the nitty-gritties of a judicial process – One that, the former US Ambassador-at-large for war crimes, now attached to The Hague Institute For Global Justice, Steven Rapp, told TGTE, he expects Sri Lanka would do – “Now”, meaning right away . Instead the Minister was mentioning a “truth seeking mechanism (that too its own unique one not unlike the South African TRC), and a Missing Persons office”, that would he said, “gain the confidence of all concerned,” believing if these were in place, “the demand by the people, for such a judicial mechanism may also drift away,” happily mentioning in the same breath that he had, “won the trust and confidence of people like Father Emmanuel,” of the Global Tamil Forum.

Harsha de Silva on the other hand wrote out his little thesis on face book harping on the word “participation“and ripping it apart to explain it did not mean “hybrid court”:’

And I quote:

“Participation has multiple definitions. What certain sections are trying to say is that ‘participation’ means a ‘hybrid court’ that consists of foreign judges sitting on the bench hearing cases. By misleading the public in to equating ‘participation’ to ‘hybrid’ some Sinhala groups claim Government sold out and some Tamil groups claim the Government gave in.

What the President and PM and also FM have said is that is NOT the case. There won’t be any hybrid court for several reasons but, from a legal and technical perspective, because Sri Lanka constitution does not allow foreign judges to sit in judgment; in other words ‘participation’ cannot mean ‘hybrid’.” 

End quote.

Sri Lankan government Ministers, like they did his predecessor, have repeatedly rejected the High Commissioner’s reports and even the report submitted by its own, ‘Consultation Task Force on Reconciliation Mechanism’ (CTFRM) that the Sirisena regime commissioned, which called for “foreign judges in a war crimes court.” The curt dismissal of foreign judges, the ICC and a hybrid court has been the ploy of all of Sri Lankan Sinhala politicians, who blame “extremists on both sides” or the Tamil Diaspora” for misleading the ignorant “public”..to suit their narrow political agendas,” little acknowledging it was High Commissioner Zeid, who both in his September 2015 and February 2017 reports undeniably suggested a hybrid court. 

High Commissioner’s Call for UN Country Presence

On the positive side, in addition to calling for Sri Lanka to accede to the Rome Statute, a welcome feature in the High Commissioner’s wide ranging report is the call for a, “UN Country Presence” – something that TGTE has always said was needed: The report recommends that, “OHCHR be invited to establish a full-fledged country presence to monitor the situation of human rights, to advise on the implementation of the recommendations made by the High Commissioner and the Human Rights Council in its resolutions including complying with Sri Lanka’s transitional justice obligations, and to provide technical assistance.” Hope a permanent UN presence in the NorthEast would be pursued with vigor even as the OHCHR plans to send six missions in the two years, intended to assess Sri Lanka’s progress – significantly Sri Lanka is still a, “a country of concern” requiring close scrutiny under item 2.

TGTE’s Strong Presence in Geneva

The TGTE (Transnational Government of Tamil Eelam), for its part, had a strong presence in Geneva with Minister for International Affairs, Manicka Vasagar, Minister for Human Rights, Mani Vannan and the TGTE Secretariat headed by Suginthan Murugiah engaging member states for an ICC referral, believing strongly there should be, “consequences for non-compliance,” urging the Council for a debate on an ad-hoc tribunal and sending out a draft proposal for the consideration of Member States.

TGTE’s MAP appointed to monitor and “shine a light” on Sri Lanka’s implementation of 30/1, mentioned earlier at the beginning of this article, commenting on hrc34/L1 as falling short also released its 2^nd spot report which recommended that, “should the GSL continue to act in bad faith and/or fail to take significant steps towards implementing the word and spirit of HRC Resolution 30/1, the United Nations Security Council should, within one year, refer the Sri Lanka situation to the International Criminal Court. These steps must include meaningful progress towards establishing a hybrid war crimes court with the participation of international judges and prosecutors.” 

Decoding Sri Lanka’s True intentions

Going by its “road map to reconciliation”, all signs point to the fact that Sri Lanka is not in a hurry to proceed with a hybrid court; the subtle clues it’s giving means it won’t be following the letter and spirit of both resolutions, picking and choosing what it wants. Decoding the pronouncements of Harsha de Silva and Mangala Samaraweera, it becomes clear, Sri Lanka’s interpretation of the provisions are very different from what the drafters of the resolutions envisaged. When Mangala Samaraweera says, “we are setting are own domestic mechanism”, he means no foreign judges, lawyers, prosecutors and investigators; and when he says, “we call our reconciliation road map, “Festina Lente”, it means, ‘making haste slowly’ in Latin, because this is a problem that had been there for decades and one cannot expect the issues to be resolved overnight,” it actually means, be prepared for a long wait; it’s not going to happen, not in the foreseeable future.

The Minister’s press conferences upon his return from Geneva, was evasive and dismissive on the subject of a war crimes probe, of foreign judges and a hybrid court, blaming the Rajapaksas, “who totally trampled on a free judicial process, for the world and the people of Sri Lanka to lose faith in the judiciary.” On the question of war crimes, the Minister doubted whether the “allegations” would amount to ”war crimes”, because Sri Lanka, “had one of the most disciplined armies” except for “some miscreants” he said.  Furthermore, the Minister seemed to think, “The resolution itself is not carved in stone,” stating, “we will have to decide what we can do and cannot do… as the High Commissioner himself said the UN Human Rights can propose but the final decision is ours, although we have to consider all the stakeholders.”  Annoyed at the media’s obsession for foreign judges, “having foreign judges was not their sole obsession, it’s neither the obsession of the international community, nor is it the obsession of the government,” he said. “Finally we want to make sure there is a fair, independent, credible process.”

To a question on the High Commissioner’s recommendations, the Minister quoted the High Commissioner himself whom he reminded had said,”It does not mean there’s not going to be variations on how they’re going to be done.”

Hiding Behind Sovereignty

Trust is definitely a big problem with Sri Lanka; all throughout the 34^th session of the Council Sri Lanka has been disingenuous. Sadly the session ended, predictably, marred by Sri Lanka’s monumental lies and duplicitous conduct. The final straw was when of all the excuses Sri Lanka could muster it found one that virtually closed the chapter on establishing a hybrid judicial mechanism in a domestic setting: Harsha de Silva having the gall to announce that, “UN resolutions were not binding on a sovereign nation,” and that the, “High Commissioner’s report had no relevance whatsoever to what the government was doing at the ongoing 34^th UN Human Rights Council sessions.” 

Prime Minister Rudrakumaran Sets out TGTE’s Immediate Plans

Reflecting upon the two year extension granted to Sri Lanka, Prime Minister Rudrakumaran setting out TGTE’s immediate plans, slammed the Council for becoming complicit, providing impunity to the perpetrators. Not prepared for Tamil victims to remain, “idle as passive observers of the transitional justice process for the next two years,” but rather to “take ownership” by not relying entirely on the Council, believing, “to date it has proved ineffective,” pointing to the High Commissioner’s call for, “Member States individually to investigate and prosecute the perpetrators of international crimes, giving the impression the Commissioner himself is losing faith in State based institutions,” Rudrakumaran’s strategy involves, “extending MAP’s mandate for monitoring Sri Lanka’s compliance,” and, “establishing a panel of lawyers to build case files against Sri Lanka.”

Compelling Case Made for ICC Referral

Sadly Sri Lanka can no longer be trusted to deliver on its commitments on a domestic judicial mechanism; on the contrary a compelling case has been made here-in for referring Sri Lanka to the ICC or to establishing an ad-hoc independent international tribunal.

Sri Lanka’s duplicity cannot triumph at the UN HRC.

If it wishes to keep to its undertaking at the UN Human Rights Council, Sri Lanka must NOW begin the task of enacting legislation, appointing a special counsel, opening a special counsel’s office, establishing a hybrid court and filing charges.

Otherwise Sri Lanka must be told an ICC referral is imminent if it backtracks on delivering on a hybrid mechanism – when the High Commissioner presents a written update to the UN Human Rights Council at its thirty-seventh session.

*Read also Part 1 and Part 2